Canadian Environmental Protection Act: compliance and enforcement policy, chapter 4

Authorities

The following authorities are responsible for implementation of the Canadian Environmental Protection Act, 1999 (CEPA).

Minister of Environment

The Minister of Environment has responsibility for the administration of the act. The Minister must act in accordance with the legislation and is accountable to Parliament for his or her actions.

Minister of Health

Under the act, the Minister of Health provides advice in relation to human health aspects and, jointly with the Minister of Environment, recommends regulatory actions for toxic substances. The Minister of Health also advises on the human health effects of emissions and discharges from Canadian sources of international air or international water pollution. However, the Minister of Health has no direct enforcement responsibility.

Enforcement officers

Enforcement officers are individuals with that designation under the Canadian Environmental Protection Act, 1999.

They can:

  • carry out inspections to verify compliance with the law
  • direct that corrective measures be taken, where there is danger to the environment, human life or health, caused when the illegal release of a regulated substance has occurred or is about to occur
  • direct that conveyances, such as cars, trucks, trains and other means of transport be stopped and moved to a location suitable for inspection
  • conduct investigations of suspected violations

The powers of enforcement officers including entry, search, seizure and detention of items related to the enforcement of the Canadian Environmental Protection Act, 1999 and the power to require the production of documents and electronically stored data as well as the power to issue tickets, directions and orders are detailed in the statute. In addition to these powers, a CEPA enforcement officer has the powers of a peace officer. At the time that the Minister designates a qualified individual to be an enforcement officer, the Minister has the authority, under CEPA, to specify limits on the peace officer powers that the enforcement officer may exercise.

Analysts

CEPA provides authority for the Minister to designate individuals to act as analysts for the purpose of any part or all of the act. An analyst may be any qualified person, such as a laboratory technician, a toxicologist, a computer systems analyst, an engineer with expertise in a particular area such as metal finishing or the use of organic substances in industrial processes, or a forensic accountant.

CEPA analysts have the following powers:

  • to enter any place or premises to which the act or its regulations apply
  • to open receptacles
  • to take samples
  • to conduct tests and/or measurements
  • to require documents and/or data to be provided to them and take copies as necessary

Analysts can only exercise those powers when they accompany an enforcement officer to a site.

CEPA analysts who carry out laboratory testing or analysis may have their evidence presented in court in the form of a certificate rather than in person.

Review officers

Review officers are appointed by the Minister of Environment. Their function is to review an environmental protection compliance order (EPCO), if the person subject to the order applies for a review. EPCOs are orders that enforcement officers are able to issue to prevent a violation from occurring, to stop a violation that is ongoing, or to order that a person carry out required conduct that they have omitted or refused to do. EPCOs are discussed in detail later in this policy, in the chapter entitled "Responses to alleged violations".

While review officers are appointed by the Minister of Environment, their salary is set by Governor in Council, in order to ensure an arm's length relationship from the Minister. The Minister chooses one of the review officers as Chief Review Officer. It is the Chief who puts in place the procedures for reviews of EPCOs, and who assigns the various cases to his or her fellow review officers.

Decisions by review officers may be appealed to the Federal Court by the person subject to the EPCO or the Minister of Environment as described under the heading "Courts".

Attorney General and officials of the Department of the Attorney General

The Minister of Justice is the Attorney General for Canada. The Attorney General has responsibility for all litigation relating to the Canadian Environmental Protection Act, 1999. The Attorney General, the officials of the Department of the Attorney General and Crown prosecutors may also provide advice to CEPA enforcement officers respecting the preparation of :

  • warnings, directions or environmental protection compliance orders, which are enforcement measures that are discussed in the chapter of this policy entitled "Responses to alleged violations"
  • documents to lay charges, or to secure inspection warrants or search warrants

While enforcement officers may lay charges for offences under the act, the ultimate decision on whether to proceed with prosecution of the charges rests with the Attorney General. With respect to an application for an injunction or a civil suit for recovery of costs in the various circumstances in which such recovery is allowed under the act, enforcement officers will recommend these civil actions to officials of the Attorney General. The legal counsel of the office of the Attorney General will then have the ultimate decision on proceeding with the injunction or suit for cost recovery.

When considering litigative action under the act, the Attorney General or Crown prosecutors acting on his or her behalf will have regard to this policy.

Courts

The courts make the final decisions regarding prosecutions, injunction applications and civil suits under the Canadian Environmental Protection Act, 1999, including what penalty to impose or what remedy to order.

The Federal Court of Canada has a role regarding appeals which that Court may receive when a person subject to an environmental protection compliance order or the Minister of Environment is dissatisfied with the outcome of a review of the order conducted by a review officer under CEPA, 1999. The Federal Court of Canada would receive the appeal and decide whether to hear the case. If the Federal Court hears the case, it would render a decision, which would itself be appealable to the Federal Court of Appeal and to the Supreme Court of Canada.

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